Aug 30, 2012

The GOP platform & the 'war on religion'

The Republican Party platform -- approved this week at the convention in Tampa -- includes a gloss on the Bill of Rights. For the First Amendment's two clauses on religious liberty, establishment and exercise, the party repeats the claim that there is currently a "war on religion" being waged by the Obama administration, and takes a stand defending individuals' and institutions' right not to offer services not in accordance with given affiliated religions.

The platform reads:
"The most offensive instance of this war on religion has been the current Administration's attempt to compel faith-related institutions, as well as believing individuals, to contravene their deeply held religious, moral, or ethical beliefs regarding health services, traditional marriage, or abortion. This forcible secularization of religious and religiously affiliated organizations, including faith-based hospitals and colleges, has been in tandem with the current Administration’s audacity in declaring which faith-related activities are, or are not, protected by the First Amendment—an unprecedented aggression repudiated by a unanimous Supreme Court in its Hosanna-Tabor v. EEOC decision.

"We pledge to respect the religious beliefs and rights of conscience of all Americans and to safeguard the independence of their institutions from government. No health care professional or organization should ever be required to perform, provide for, withhold, or refer for a medical service against their conscience."
This seems to sum up the argument, essentially, which has been made many places in the ongoing religious-liberty-related debate about health care.

I have one factual criticism of this statement, and one (persistent) question about the argument.

First, this is a very odd reading of the Hosanna-Tabor v. EEOC case. The question wasn't about one form of religious practice vs. another, but about who qualified as a minister for the ministerial exemption to employment law. The Equal Employment Opportunity Commission lawyers argued for a more restricted and basically traditional definition of "minister," while the lawyers for the Lutheran school Hosanna-Tabor argued it had the right to list all teachers at the school as "ministers," which would allow them to fire one who was ill. Even if the school's triumph in that case is to be thought of as a triumph for "religious liberty," that's hardly a case of the "Administration’s audacity in declaring which faith-related activities are, or are not, protected by the First Amendment."

There's an argument to be made that the Obama administration is doing that, but it's not Hosanna-Tabor.

And, really, isn't any and every freedom of religion case a matter of asserting a definition of what qualifies as an exercise of religion and why? It's not so much "audacious" the nature of the issue.

Second, I still haven't seen or heard a decent, thorough working out of the logical conclusions of this position. If it's really the argument that health care professionals and organizations should not ever be required to perform services against their religion/conscience, would it be okay for a nurse who has just converted to become a Jehovah's Witness to refuse to help with a blood transfusion? Does a Catholic ambulance driver have the right refuse to transport a pregnant woman in a medical emergency that might involve an abortion to save her life? Could an emergency room doctor who is a Conservative Jewish refuse to treat a menstruating woman? Does a Christian Identity MRI tech have a First-Amendment guaranteed right not to be forced to scan a non-white person?

These are not facetious questions. I honestly don't understand if the Republican party platform's declaration of "not ever" is meant, really, to go all the way to the logical end, or if there's a line somewhere that I just haven't heard articulated.

Relatedly, it's not at all clear to me why the stated position would apply to health care professionals and not others. If the argument only applies to health care, why? If not, then the question about the nurse, ambulance driver and doctor could be repeated in an endless number of hypothetical variations. Would it still be the case that this position is as absolute as it appears?

These issues are, it seems to me, implicit in religious pluralism and right of free exercise. They exist in and are a part of the clauses of the First Amendment the platform statement seeks to interpret. These problems are not unique to the Republican party platform, but the platform goes out of its way to make a really strong statement without offering any nuance or detail or even, really, guiding principles for how Republicans might attempt to finesse problematic cases.